Why The Jury Should Convict Michael Sussmann Of Lying To The FBI, But Probably Won’t

Closing arguments will begin later this morning in Special Counsel John Durham’s false statement case against former Hillary Clinton campaign attorney Michael Sussmann, after Sussmann made a last-minute decision on Thursday not to testify in his own defense. The evidence prosecutors elicited from witnesses over the last two weeks provides overwhelming proof of Sussmann’s guilt and destroys the many defense theories Sussmann’s legal team floated throughout the trial, yet a conviction of a fellow D.C.-swamp dweller may be unattainable.

Last fall, the special counsel indicted Sussmann on one count of making a false statement in violation of Section 1001 of the federal criminal code. The special counsel alleged Sussmann lied to then-FBI General Counsel James Baker during a September 19, 2016 at which Sussmann presented Baker with data and whitepapers that supposedly showed the existence of a secret communications network between the Russian-based Alfa Bank and the Trump organization. According to the indictment, Sussmann was acting on behalf of the Clinton campaign and tech executive Rodney Joffe when he met with Baker, but falsely told his friend that he was coming on his own behalf to help the FBI.

Before adjourning for the day on Thursday, presiding Judge Christopher Cooper provided instructions to the jury. Jurors will use those to decide whether to convict or acquit Sussmann following deliberations, which will begin either Friday afternoon or Tuesday following the long Memorial Day weekend.

“The government must prove beyond a reasonable doubt” five facts, Judge Cooper explained, namely that (1) “on September 19, 2016, the defendant made a statement or representation;” (2) “the statement or representation was false, fictitious or fraudulent;” (3) “that this statement or representation was material;” (4) “the false, fictitious or fraudulent statement was made knowingly and willfully;” and (5) “the statement or representation was made in a matter within the jurisdiction of the executive branch of the government of the United States.”

The government previously requested the court take “judicial notice” of the fact that the FBI is within the executive branch of the government, meaning the fact is conclusively established for the jury. While the parties disagree about what Sussmann said to Baker, Sussmann clearly “made a statement or representation” to the then-general counsel of the FBI, leaving jurors to focus on the other three elements.

Overwhelming Evidence to Convict

During today’s closing arguments, the government will remind the jury of the detailed evidence prosecutors presented over the course of the trial, including through nearly 20 witnesses. That evidence overwhelmingly established the three remaining facts prosecutors must prove.

First, the prosecution must prove Sussmann denied acting on behalf of any particular client when he met with Baker. Here, the government will stress Baker’s testimony. That had the former general counsel telling the jury he was “100% percent confident” Sussmann said during their September 19, 2016 meeting that he was not representing a client. “My memory on this point, sitting here today, is clear,” Baker told the jury.

While the defense took issue with Baker’s memory, those efforts should fail for two reasons. First, Baker’s testimony made clear that he was a reluctant witness, not out to get Sussmann and feeling responsible for dragging his friend “into a maelstrom.” Second, prosecutors presented evidence that Sussmann texted Baker the night before their September 19, 2016 meeting, writing, “I’m coming on my own – not on behalf of a client or company. [W]ant to help the Bureau.”

Given Sussmann denied representing a client the night before the meeting, a reasonable jury would find Baker’s testimony that he was “100 percent confident” Sussmann repeated the claim at the start of their meeting conclusive.

In addition to that evidence, the jury also heard from two of Baker’s colleagues in the FBI who testified that the notes they took shortly after Baker met with Sussmann indicated Sussmann had told Baker he was not working on behalf of any client.

Even More Evidence He Lied

The evidence also overwhelmingly established that Sussmann’s claim that he was not working on behalf of any client was “false.” Specifically, the government elicited testimony from Sussmann’s former Perkins and Coie partner, Marc Elias, who served as the lead lawyer for the Clinton campaign, that Elias had hired the investigative firm Fusion GPS to conduct opposition research against Trump. Elias also told jurors he learned of the supposed Alfa Bank-Trump secret communication channel from Sussmann.

Elias also provided a detailed explanation of how law firm billing records work. Prosecutors admitted records showing Sussmann reported time spent on the Alfa Bank project to the Clinton campaign, and specifically billed the Clinton campaign for a project he worked on on September 19, 2016, the same day he met with Baker.

Elias had previously testified that he believed Sussmann’s only work on behalf of the Clinton campaign concerned Alfa Bank. Then on Wednesday, the government presented evidence Sussmann charged the Clinton campaign for the thumb drives used to transfer the Alfa Bank data to the FBI, providing pretty conclusive proof of the government’s assertion Sussmann was representing the Clinton campaign.

Other evidence supports the government’s argument that Sussmann was also acting on behalf of Joffe when he met with Baker. For instance, Fusion GPS’s Laura Seago testified that she first heard of the Alfa Bank theory at a meeting with Elias which Sussmann and his client Joffe also attended.

Also Lots of Evidence This Affected the FBI

The special counsel likewise provided substantial evidence related to the second factor, “materiality.” Here, the jury was instructed that Sussmann’s lie must have been “material,” meaning the statement “has a natural tendency to influence, or is capable of influencing, a discrete decision of the decision-making body to which it is addressed.”

In this case, the government presented testimony of several federal agents showing how Sussmann’s lie altered their decisions, with Baker testifying “he would not have taken the private meeting with Sussmann if he knew Sussmann was working on behalf of the Clinton team.” Baker also told the jury he had “vouched for” Sussmann and treated him as a sensitive confidential human source, protecting his identity from other agents because he believed Sussmann had come to the FBI on his own.

Other agents also testified that they hit roadblock in determining the source for the Alfa Bank data and that in assessing the data, knowing whether it came from someone with “a political affiliation or motivation” would affect the initial steps of an investigation.

Evidence Sussmann Lied On Purpose

Finally, the government must establish Sussmann held the required “mens rea” or “guilty mind.” Section 1001, which criminalizes false statements, requires a defendant make the false statement “intentionally” or “knowingly.” Circumstantial evidence can establish a defendant’s state of mind and the evidence admitted at trial. That includes Sussmann’s congressional testimony including his acknowledgment that he was acting on behalf of a tech expert. All this provides overwhelming evidence that Sussmann’s lie was intentional.

In an attempt to counter this overwhelming evidence, during Sussmann’s closing argument his attorneys will likely hammer inconsistencies in statements Baker previously made concerning what Sussmann said during their September 19, 2016 meeting. Sussmann’s lawyers are also likely to highlight testimony they presented that the Clinton campaign did not want Sussmann to take the evidence to the FBI, including testimony from Clinton campaign manager Robby Mook. The government, however, countered that evidence with testimony establishing that Perkins and Coie attorneys and Fusion GPS held great discretion to act on behalf of the Clinton campaign.

The defense is also certain to highlight trial evidence showing the FBI’s national security concerns about Trump’s connection with Russia, as well as testimony touting Joffe’s reputation as a tech expert, to argue Sussmann held serious concerns about the data. But the special counsel will quickly counter that Sussmann’s concerns do not excuse him for lying to the FBI. Finally, Sussmann’s legal team will likely stress the testimony of character witnesses who spoke of Sussmann’s stellar reputation.

Why an Acquittal Is Likely Despite the Evidence

While there can be no certainty in predicting the jury’s eventual verdict, an acquittal seems likely—even with the overwhelming evidence of Sussmann’s guilt detailed. Baker’s trial testimony provided the clearest foreshadowing of this outcome when he told prosecutors, “I’m not out to get Michael. This is not my investigation. This is your investigation. If you ask me a question, I answer it. You asked me to look for something, I go look for it.”

Bill Priestap, who served as the assistant director of the Counterintelligence Division for the FBI in 2016, displayed an even more grudging demeanor in testifying on behalf of the special counsel. When questioned by prosecutors whether it was “important” for Sussmann “to fully disclose his ties to the Clinton campaign,” Priestap said it “would have been part of several factors,” telling the government attorney, “I’m struggling on your use of the word ‘important.’ It’s a motivation that is relevant, but not the only factor.”

If Baker, the man to whom Sussmann lied, adopts such a disinterested approach to justice, and Priestap, an assistant director at the FBI, shows disdain for the special counsel’s case, surely a jury of Sussmann’s peers will too.

The men and women of the jury live and work in D.C., with men and women like Sussmann, and Baker, and Priestap. Their kids go to school together—literally in the case of one juror—and they likely can envision a friend or neighbor in Sussmann’s position.

While Sussmann’s lie was “material” in the legal sense, jurors seem likely to shrug the lie off as harmless, mentally parroting the woman several jurors acknowledged donated money to when she ran for president in 2016: “What difference at this point does it make?”

I may be wrong. But I don’t think so.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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